Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2018 2 | February 14, 2018 Answer: When an employee is terminated without cause, an employee is entitled to receive working notice or payment in lieu of notice. As a rule of thumb, the longer an employee has worked for the same employer, the more notice or pay in lieu thereof the em- ployee is entitled to receive. When there is an absence or interruption in an employee's employment, an issue can arise as to whether to treat the entirety of the employment as one continuous period, or disregard any employ- ment prior to the interruption. Statutorily, this issue is quite clear. Alberta's Employment Standards Code recognizes that for the purpose of determining the cor- rect statutory termination notice, two peri- ods of employment are to be considered as one if 90 days or less elapsed between the two periods of employment. No distinction is made between whether the employee initial- ly resigned or was terminated. For example, in ompson Bros (Constr.) Ltd. v. Saar, an employee was laid off and returned to work nine months later. e fact that the employee was laid off had no bearing on the decision. e umpire simply applied the 90-day rule to the circumstances and confirmed that the two periods of employment would not be considered as one. At common law, however, whether an em- ployee resigned or was terminated may be a factor in determining whether the employee was continuously employed. For example, the fact an employee is termi- nated and received a severance package is a factor that breaks the term of service. As a matter of policy, such a practice prevents double recovery by ensuring that an em- ployee does not receive a reasonable notice entitlement for the same period of time more than once. In Stant v. Elaho Logging Ltd., the employee was terminated, received a $20,000 severance, and signed a release for future claims. He returned one year later and was terminated again following nine additional years of service. e period of employment prior to his first termination was not taken into account in assessing the reasonable no- tice period for his second termination. In assessing whether resignation constitutes a break in employment, considerable weight is put on the reason for the employee's resig- nation. For example, if the employee resigned for family reasons, courts are less likely to view this as an absence that breaks the term of service: see Brien v. Niagara Motors Ltd. In contrast, if the employee resigned to work for a competitor, the absence will likely break the term of service, as in Gibara v. ABN Amro Bank Canada. In addition to whether an employee resigned or was terminated, other factors are relevant to determining a break in service, such as the length of absence in relation to the length Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com REASON on page 6 » Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Determining break in service Question: If an employee leaves but returns within a very short time, does it matter whether the employee was originally terminated or she resigned when determining if she has an unbroken term of service? Legislation defines how long break in employment must be to consider it one period of service Holiday pay for new employees Question: How is the public holiday pay of a new employee calculated if the employee just started that week, or a part-time employee who didn't work during the calculation period? Answer: Most employees are entitled to take general holidays and receive holiday pay. e calculation of public holiday pay is specified in provincial employment standards legisla- tion which generally stipulates: • e eligibility period in which an employee must work to be eligible for holiday pay • e earnings calculation that determines how much holiday pay to which an employee is entitled. For example, the provisions of Alberta's Employment Standards Code govern pub- lic holiday pay (or, "general holiday pay"). As of Jan. 1, 2018, when Bill 17, the Fair and Family Friendly Workplaces Act came into force and amended the Alberta Employ- ment Standards Code, the requirement that an employee work for 30 days or more in the 12 months immediately preceding the gen- eral holiday in order to be eligible for general holiday pay was removed. In other words, all employees are entitled to holiday pay in Alberta unless an employ- ee, without the consent of the employer, does not attend work when required on either the general holiday, the last regular work day preceding the general holiday, or the first regular work day following the gen- eral holiday. In any of these circumstances, the employee will not be eligible for general holiday pay. Regardless of whether the employee works on the public holiday, holiday pay is calcu- lated as five per cent of the employee's wag- es, vacation pay, and holiday pay earned in the four weeks immediately preceding the public holiday. Wages do not include over- time pay, termination pay, expenses, gratu- ities, or a discretionary gift or bonus that is not related to hours of work, production or efficiency. In Alberta, in the case of an employee who commences work on a week where there is a public holiday, the employee would be enti- tled to holiday pay of five per cent of the wag- es, vacation pay and holiday pay earned from the days the employee did work that week. In the case of a part-time employee who did not work during the calculation period (such as the previous four weeks), and therefore did not receive any wages, vacation pay, or holiday pay, the employee would not receive any general holiday pay. In addition to the holiday pay detailed above, if the employee works the general holiday, she is entitled to either 1.5 times her wage rate on the general holiday, or one day's holiday to be taken at a different time. is applies to every employee who works on the general holiday, and therefore would apply to both a new employee and an existing part- time employee. e specifics of holiday pay entitlement varies from jurisdiction to jurisdiction, with some jurisdictions in addition to Alberta — such as Ontario — making recent changes. Tim Mitchell practices management-side labour and employment law with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@ nortonrosefulbright.com.

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